WHICH WILL APPLY?
William J. Self, II, Judge
Probate Court of Bibb County
In the last issue of The Docket, I presented an overview of the major changes under the newly re-written and revised Titled 53 of the Georgia Code. The new Code takes effect on January 1, 1998; however, O.C.G.A. §53-1-1 provides, in part: "provided, however, that no vested rights of title, year's support, succession, or inheritance shall be impaired." While this phrase may give rise to some lititgation in the future about the application of the provisions of the revised Code to particular circumstances or facts, I do believe that the date of death will control matters of substance, while the date of filing will govern matters of procedure.
For example, the spouse of a deceased who dies on or before December 31, 1997 (1) would be entitled to an intestate share of the estate of one-fourth, (2) would have three years from the date of death to file an application for twelve months' support, (3) would be entitled to a minimum award for years' support of $1,600, and (4) could file two additional applications for twelve month's support if the estate remained open and the debts were paid.
On the other hand, the spouse of a deceased who dies on or after January 1, 1998 (1) would be entitled to an intestate share of the estate of one-third, (2) would have only twenty-four months from the date of death to file an application for twelve months' support, (3) would not be entitled to any minimum award for years' support, and (4) could file only one application for twelve month's support.
In either such case, the service, notice and publication requirements in connection with any proceeding filed after December 31, 1997 would be governed by the new Code, unless the application of the procedural rules under the new Code would impair a right of title, year's support, succession or inheritance which had vested as of December 31, 1997.
As an additional example, the estate of an intestate deceased who dies on or before December 31, 1997 survived by no spouse, children or descendents of children would be inherited equally by the surviving parent or parents and all brothers and sisters of whole- or half- blood, pro rata. Yet, the estate of an intestate deceased who dies on or after January 1, 1998 survived by no spouse, children or descendents of children would be inherited by the surviving parent or parents only, to the exclusion of brothers and sisters.
Therefore, at least for some time to come, the date of death of the deceased will be an important and decisive factor with regard to the application and determination of substantive rights under either the old Title 53 or the new Title 53. So don't "erase from your hard disk" all of the old rules of law......YET!